- 36 - GERBER, J., dissenting: With due respect, I dissent from the holding of the majority. I agree that the majority’s literal reading of the phrase, “underlying tax liability”, is one possible way to interpret that phrase. It is my view, however, that the phrase “underlying tax liability”, when considered in the context of section 6330 and specifically in context of section 6330(c)(2)(B), could also be read to not include a tax liability that a taxpayer has reported and admitted was owing. The intent of the statute was to give a taxpayer the right to challenge the “underlying tax liability * * * if the [taxpayer] * * * did not otherwise have an opportunity to dispute such tax liability.” Sec. 6330(c)(2)(B)(emphasis added). That phrase should not be interpreted to mean that a person could contest their own judgment as to the correct tax. The opportunity to contest tax liabilities is, without exception, granted by statute.1 If a person files a tax return and self- assesses or admits to owing a tax liability, but fails to pay the admitted liability, the statutory opportunity to contest such liability has traditionally been through a refund suit.2 1 It is well established that the United States is immune from suit except where Congress by specific statute has waived its sovereign immunity. See, e.g., United States v. Sherwood, 312 U.S. 584, 586 (1941). 2 We must distinguish the circumstances we consider from deficiency proceedings where we have authority to consider overpayments. See sec. 6512(b). A proceeding under section 6330 (continued...)Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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